EUROPEAN COMMITTEE OF SOCIAL RIGHTS COMITÉ EUROPÉEN DES DROITS SOCIAUX 3 September 2013 Case Document No.4 Confederazione Generale Italiana del Lavoro (CGIL) v. Italy Complaint No. 91/2013 OBSERVATIONS FROM THE ASSOCIATION LUCA COSCIONI PER LA LIBERTA DI RICERCA SCIENTIFICA Registered at the Secretariat on 30 August 2013 Associazione Luca Coscioni for the freedom in scientific research, Via di Torre Argentina, 76 - 00186 – Rome - Italy Secretariat of the European Social Charter Directorate General of Human Rights and Legal Affairs Directorate of Monitoring F-67075 Strasbourg Cedex Francia OBSERVATIONS ASSOCIATION LUCA COSCIONI FOR THE FREEDOM IN SCIENTIFIC RESEARCH CONFEDERAZIONE GENERALE ITALIANA DEL LAVORO COMPLAINT N. 91/2013 Rome, 30 August 2013 Prof. Attorney Filomena Gallo, general secretary of the Association Luca Coscioni for the freedom in scientific research 1 Index 1. Introduction 1.1. Association Luca Coscioni : Role and Scope 1.2. Why the Association Luca Coscioni for the freedom in scientific research has got the right to undertake the compliant. 2. The 194/78 law and the moral objection 2.1. Radical Party and the commitment on legalization of abortion 3. Moral objection in the Italian courts 3.1. The Tar of Puglia judgment (14/09/2010, n. 3477, sect. II) 4. The women’s health right: theory and practice 5. Human rights and healthcare service 6. Conclusions 2 1. Introduction 1.2. The Association Luca Coscioni: Role and scope. The Association Luca Coscioni for freedom in scientific research (hereinafter, breviter, even "the Association") was founded on 20th of September 2002 by Luca Coscioni to "promote freedom in healthcare and in scientific research, selfmanaged personal assistance and assert human, civil and political rights of ill and disable people” (Article 2 of the Statute of the Association, Doc. 1). Since its origins, the Association has been promoting information and civil disobediences (including referenda, legal advice, demonstrations etc..), in order to improve the relationship between citizenship (in the broadest meaning) and scientific innovations, this is to allow, therefore, an increasing use of new technologies to promote the freedom of realization of the personality, as well as the Constitutional rights. Among the purposes of this Statute, it is stated that “the Association also pursues, by all legitimate means, including recourse to legal actions the following scopes as well as any subsequent and related [...] d) protection and health of people and respect for the rights of any ill person and his family also when dealing with private and public health hospitals” (paragraph 1a, Art. 2 of the Statute). It seems clear, therefore, that the Association is not only directly interested in the discussion initiated by the Italian General Confederation of Labour (henceforth, breviter, CGIL), but it is even more entitled to supply information relating to the matter referred to in this complaint, since, with more than ten years of experience, the Association collects information (or rather "complaints ") concerning to the practice of abortion. In fact, among other priorities, the Association provides, with an active role, a form of assistance to women who are unable to access services for the termination of pregnancy, 3 which should be guaranteed within the entire national territory, as required by the relevant regulations (Law no. 194 of 1978). Moreover, on the website of the Association a special compliant section is provided for those who have directly experienced a refusal to access to procedures for termination of pregnancy, or a complaint fin relation to the absence of non- objector medical staff . For reasons above, the Association has asked to participate in the present complaint with a request signed by the current Secretary, Mrs. Filomena Gallo - voted on 7th of October 2012. The European Committee of Social Rights authorized the submission of observations with a communication dated 18th of June 2013 (Doc. 3). 1.2 Why the Association Luca Coscioni for the freedom in scientific research has got the right to undertake the compliant. Another element is that the working space of the Association is not only relevant on the abstract level, but much more effectively in practice. The experience that we want bring attention on concerns numerous complaints from people who directly or indirectly have been involved in incidents of misconduct at an earlier time during a termination of pregnancy procedure , or even worse, while an abortion was practiced. Unfortunately, the sensitivity of the data and related information, often anonymously, does not allow for the direct reporting of the facts, that are often crimes such as interruption of public service pursuant to art. 340 criminal code. The reluctance of women to expose themselves in the first person is humanly understandable, as a very delicate phase of their lives is involved. The association - through “Soccorso civile”1 - is able to collect direct experiences from women who suffered a damage caused by the impossibility to access to pregnancy 1 A service available here http://www.associazionelucacoscioni.it/soccorso-civile, where it is possible to find more information in order to prevent laws and a bad practice from destroying freedom and people rights, offering the possibility to leave testimonies and personal stories, granting, naturally, anonymity when the person behind the story is willing to stay anonymous. 4 interruption or had to bear serious difficulties in gaining access to a service provided by the law. Some stories underline that many times women experiencing an advanced phase of abortion are left completely alone because doctors and personnel are objectors. Unfortunately to date it is quite difficult that a woman would expose herself personally in this context, differently for example, from what happens in the case of medically helped procreation, where couples, because of the completely opposite means of those interventions tend to expose more easily and with less shame instead. For what mentioned above it is apparent that the Association has a voice not only for tits mission but above all on the basis of complaints which over the years it has collected. But that's not all. The Association has recorded another important fact - clearly expressed by the data collected by the CGIL - that identifies an increase in objector personnel within hospitals. This increase leads to a disturbing flaw, which apparently was not taken into account at the time Law 194/1978 was drafted. 2. The law194/78 and the moral objection The Law no. 194 of 22 May 1978 states that a pregnancy may be terminated in the first quarter in the event that its continuation could endanger the physical or mental health of the woman and after the first quarter only to situations of threat to the woman's life or serious anomalies and malformations (Articles 4 and 6 of Law No 194/78). The law regulates the conditions and procedures with which the woman can decide to interrupt pregnancy. In fact, using strictly juridical terms, abortion remains a felony, but only when the conditions given by the law do not exist, as illustrated by art. 19 of 194/78 law. This law establishes the necessary conditions in order to interrupt the pregnancy respectively in the first 90 days of childbearing, and after. It is clear that the conditions change if the decision is made before or after 90 days. Within the first 90 days the motivations can be physical or psychical, as well as in relation to economic, social ad affective circumstances in which the pregnancy happened. After 90 days is possible to interrupt the pregnancy only if: 5 - The pregnancy or the delivery can cause a serious danger to the woman’s life. - When there are certified pathological processes, like those related to relevant anomalies o malformations of the new-born, determining a great peril for the woman’s physical or psychic health. Before law 194/1978 came into force, the discipline related to abortion was contained in the criminal code, art. 545. This discipline repressed every form of abortion (both in terms of consenting or a non-consenting woman) as an offence related to the damage of integrity and health of the birth. This aspect clearly indicates that the Copernican revolution was taking place in the seventies of the last century. Eventually there was a transition from a phase of clandestine abortion, prosecuted by the States criminal law, to a regulatory framework that guaranteed "right to conscientious and responsible procreation" (Article 1, Law 194/78), recognizing the right to abortion in specific conditions. The cultural and political climate in which this legislation has matured (coming from the Constitutional Court's declaration of unconstitutionality of the rule criminalising the voluntary termination of pregnancy – Judgment n.27 of 1975) respectful of the many interests at stake, was also considered the position of health personnel and allied health personnel to raise moral objection in relation to procedures resulting in the termination of pregnancy. The reason for this has to be found in the sudden change introduced by the new law. The transition from abortion as a crime to abortion as a women’s right might have created, at that time, some disorientation in the healthcare personnel (although it is certain that the practice of abortion was already widespread before 1978). Therefore, at a legislative level, moral objection played a role of “mitigation” or an accompaniment between the two dimensions of crime vs. right. Today, after 35 years, moral objection has no longer any 6 logical and legal foundation, and it represents the greatest obstacle to the full implementation of Law 194/1978. The massive use of moral objection – even if it does not represent a crime in itself, according to Italian criminal law – effectively causes the interruption of a public service which might indeed constitute a crime under Italian law (art.